As pending climate litigation works through the judicial system, we’re seeing high-level decisions on the key legal theories and procedural issues underpinning these cases. The Colorado Supreme Court recently joined Hawaii, becoming the latest high court to allow climate-based tort litigation brought by municipalities. The court ruled in favor of the City of Boulder and Boulder County, finding that their claims were not preempted by federal law. A recent Mintz memo discusses the decision:
“This decision is largely similar to, and echoes the reasoning of, the decision by the Hawaii Supreme Court to allow parallel claims by local governments in Hawaii to proceed, and the Colorado Supreme Court expressly acknowledged that ‘the Hawai’i Supreme Court’s decision . . . is substantially on point’ and that the Court found it ‘persuasive.’ Yet this decision–which focuses on the legal doctrine of preemption–is contradicted by a ruling by the Second Circuit in a parallel legal action (and that Second Circuit decision is the core precedent relied upon by the dissent). This deepening divide over the scope of preemption may encourage the intervention of the U.S. Supreme Court into this issue, impacting the dozens of climate change tort litigation cases currently pending throughout the United States.”
We’re now seeing new precedents established in climate cases as a body of case law is built. However, this burgeoning field of litigation still faces existential threats from the Supreme Court. Up to now, the Court has been hands-off on the question of state climate litigation. Although the memo notes that growing schisms at the state and federal levels may force SCOTUS to weigh in. The pending lawsuits I wrote about last week, both from the administration and various states, argue that federal law preempts state climate tort claims. Both lawsuits present prime opportunities for the Supreme Court to take up the matter and rule decisively on the issue.
Members can read more about climate litigation here.
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